United States v. Nueci–Peña

• Decision Date: 19 March 2013
• Docket Number: No. 10–2281.,10–2281.
• Citation: 711 F.3d 191
• Parties: UNITED STATES, Appellee, v. Francisco NUECI–PEÑA, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

711 F.3d 191

UNITED STATES, Appellee,

v.Francisco NUECI–PEÑA, Defendant, Appellant.

No. 10–2281.

United States Court of Appeals, First Circuit.

March 19, 2013.

Vivianne M. Marrero–Torres, Assistant Federal Defender, for appellant, with whom Hector L. Ramos–Vegas, Assistant Federal Defender, and Hector Guzman–Silva, Federal Defender, were on brief.

Justin Reid Martin, Assistant United States Attorney, for appellee, with whom Nelson Pérez–Sosa, Assistant United States Attorney, Appellate Chief, and Rosa Emilia Rodríguez–Velez, United States Attorney, were on brief.

Before HOWARD, LIPEZ and THOMPSON, Circuit Judges.

THOMPSON, Circuit Judge.

A massive drug interdiction on the high seas by the United States Coast Guard (“the Coast Guard”) ended with the arrest and indictment of multiple defendants, including Appellant Francisco Nueci–Peña (“Nueci”). Nueci was sentenced to twenty-four years in prison after being convicted of possession with the intent to distribute over 1140 pounds of cocaine and heroin while on board a vessel in violation of the Maritime Drug Law Enforcement Act, 46 U.S.C. § 70501 et seq. (“MDLEA”). On appeal, Nueci says his conviction cannot stand, arguing that Congress has no authority under Article 1, Section 8, Clause 10 of the United States Constitution to criminalize drug trafficking on board a vessel in international waters under the MDLEA without requiring a nexus between the conduct and the United States, and that the admission of certain certifications to support the jurisdiction determination violated his Sixth Amendment right to confrontation. After careful consideration, we affirm.

BACKGROUND¹

On February 23, 2007, the Coast Guard detected a suspicious go-fast vessel in Carribean waters. After the vessel twice attempted to evade authorities, the Coast Guard managed to stop and board the vessel to verify its nationality. Nueci, identifying himself as the master of the ship, said that the vessel was Colombian. Consistent with operational procedures, the Coast Guard contacted Colombian authorities for confirmation. The Colombian Navy, however, could neither confirm nor deny that the vessel was registered in Colombia. The Coast Guard, therefore, determined that the vessel was “without nationality” and subject to the jurisdiction of the United States under the MDLEA. The Coast Guard proceeded to search the vessel and discovered 396 kilograms of cocaine and 123 kilograms of heroin on board.

All six passengers on the vessel, including Nueci, were arrested and subsequently charged with aiding and abetting (Count I) and conspiracy (Count II) in the possessionwith intent to distribute at least five kilograms or more of cocaine and one kilogram or more of heroin on board a vessel subject to the jurisdiction of the United States (that is, a vessel without nationality), in violation of the MDLEA, 46 U.S.C. §§ 70503(a)(1), 70504(b)(1), and 70506(b). They pled not guilty.

On October 23, 2007, on the eve of trial, Nueci moved to dismiss for lack of jurisdiction over the vessel, a motion joined by other co-defendants. In their motion, the defendants argued that the direct use of gunfire by the Coast Guard violated Article 12 of the Agreement Between the Government of the United States of America and the Government of the Republic of Colombia to Suppress Illicit Traffic by Sea, T.I.A.S. No. 12835. The defendants further asserted that at the time of the interdiction Nueci claimed the vessel was registered in Venezuela, not Colombia. In support of that assertion, the defendants said that three of them had overheard Nueci telling the officer, who was part of the Coast Guard boarding team, that the vessel was Venezuelan. They added that FBI Special Agent Benjamin C. Walker, who was not part of that boarding team, stated in an affidavit in support of the complaint against the defendants that Nueci had claimed Venezuelan registry. That the Colombian authorities could neither confirm nor deny the vessel's registry in the end, the defendants argued, meant nothing since the United States authorities had requested a consent waiver from the wrong country. Defendants insisted that since no contact had been made with the Venezuelan government to verify that claim of registry, the United States never had jurisdiction over the vessel and, consequently, over them. The defendants claimed that, as a result, the United States had not established jurisdiction under the MDLEA over the vessel.

Confronted with the motion to dismiss for lack of jurisdiction less than two weeks before Nueci's trial was set to begin, the district judge pushed back the trial and referred the motion to a magistrate judge in mid-November 2007. ² In its opposition to the defendants' motion to dismiss, the government rehashed what happened when the Coast Guard boarded the vessel: that Nueci, who claimed to be the person in charge on the vessel, told an officer, who was part of the Coast Guard boarding team, that the vessel was Colombian. The government pointed to the “Certification For the Maritime Drug Law Enforcement Act Case Involving the Go–Fast Vessel (Without Nationality)” attached to its opposition, which recounts that the vessel had no “marking or indicia of nationality” and “was not displaying any registry numbers, a hailing port, or flying a national flag, and had no documentation or registry papers” at the time of the interdiction. The Certification showed that in accordance with the “Operational Procedures for Boarding and Search of Vessels Suspected of Illicit Traffic by Sea Related to Narcotics and Psychotropic Substances,” the Coast Guard inquired via fax with the Colombian Navy to verify Nueci's claim of registry, but Colombia could neither confirm nor deny that claim. Consequently, the government noted, the United States determined the vessel was without nationality, or “stateless,” in accordance with 46 U.S.C. § 70502(d)(1)(c) and subject to its jurisdiction. In response to the defendants' argument that the United States should have asked Venezuela, not Colombia, whether the vessel was registered there, the government asserted that any confusion about the vessel's registry was created by the defendants themselves. The government acknowledged Nueci had claimed at one point that the vessel had departed near the Venezuelan/Colombian border and that the drug trafficking venture was organized in Venezuela (which the government suggests could have been why Agent Walker indicated that Nueci had claimed Venezuelan registry when he was not actually present at the interdiction). But, the government argued, at the time of the interdiction the vessel flew no flag, had no markings, had no registration documentation, and defendants have offered no proof that the vessel was Venezuelan. The government further argued that subject matter jurisdiction was not an element of the offense under the MDLEA and that defendants had no standing to challenge compliance with the treaty they claimed the United States violated in using gunfire to stop the vessel.

The government later filed a supplemental response to the defendants' motion to dismiss. In that response, the government detailed the Coast Guard's more recent contact with Venezuelan authorities—contact initiated to determine whether the vessel was indeed registered there as Nueci claimed. The government attached to its motion the “Supplemental Certification For The Maritime Drug Law Enforcement Act Case Involving the Go–Fast Vessel (Without Nationality) Federal Drug Identification Number (FDIN)—2007987278” issued on January 15, 2008. The supplemental certification not only details the contact with the Colombian authorities concerning the vessel's registry (included in the original certification), but also addresses Nueci's claim of Venezuelan registry. In accordance with Article 3 of the Agreement Between the Government of the United States of America and the Government of the Republic of Venezuela to Suppress Illicit Traffic in Narcotic Drugs and Psychotropic Substances by Sea, the Coast Guard requested the Venezuelan Coast Guard to confirm or deny that Nueci's vessel interdicted on February 23, 2007 was registered in Venezuela. Venezuela could not say the vessel was registered there. The government asserted that regardless of Nueci's claim of registry, because neither Venezuela nor Colombia claimed the vessel, the vessel was “stateless” and the United States' exercise of jurisdiction was proper under the MDLEA.

The magistrate judge recommended the defendants' motion to dismiss be denied. Emphasizing that the list of mechanisms for establishing that a vessel is without nationality was not meant to be exhaustive and may be supplemented by looking to international law, the judge found the vessel would not have been authorized to fly the Venezuelan flag under international law since Venezuela was unable to trace the registry of the vessel. He therefore concluded Nueci's vessel was without nationality and subject to the United States' jurisdiction under “46 U.S.C. § 70502(d)(1) as supplemented by international law.” The magistrate judge quickly disposed of the violation of international law claim, finding that there was no evidence the vessel was registered in Colombia and defendants had failed to explain how the treaty had been triggered without such registry. The magistrate judge further concluded that even if the treaty applied in Nueci's case, Nueci had no standing to raise a claim for failure to comply with international law and that such failure does not divest a court of jurisdiction. See46 U.S.C. § 70505. The district judge approved and adopted the report and recommendation in full in an order issued on April 9, 2008. After rescheduling the trial multiple times—mostly due to the parties' motions to continue—she set the trial date for September 17, 2008.

Days before trial, two co-defendants moved to change their pleas and the court terminated the September trial date and...